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The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause

Published online by Cambridge University Press:  27 February 2017

Gary L. Scott  and
Craig L. Carr
Gary L. Scott
Affiliation:
Department of Political Science, Portland State University
Craig L. Carr
Affiliation:
Department of Political Science, Portland State University
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Extract

The refusal of the United States to consider itself bound by the recent decision in the Case Concerning Military and Paramilitary Activities in and against Nicaragua, coupled with the earlier termination of its adherence to Article 36(2) of the Statute of the International Court of Justice, has sparked a small storm of controversy and concern. Part of this concern involves how the United States, presumably a law-abiding and law-respecting nation, could possibly bring itself to snub the International Court of Justice and, by extension, the ideal of international law. Another part of this concern involves the likely consequences of the United States move on the vitality of the Court as the focal institution of a slowly evolving system of international law. A less obvious concern, but arguably one of paramount importance, calls into question the wisdom of insisting that the ICJ retain its optional compulsory jurisdiction. It is this less obvious concern that we propose to discuss here.

Type
Research Article
Information
American Journal of International Law , Volume 81 , Issue 1 , January 1987 , pp. 57 - 76
Copyright
Copyright © American Society of International Law 1987

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References

1 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27).

2 The United States withdrawal from ICJ jurisdiction under Article 36(2) of the Statute of the Court was deposited by Secretary of State George Shultz on Oct. 7, 1985, following U.S. refusal on Jan. 18,1985 to participate in Military and Paramilitary Activities in and against Nicaragua. See Department Statement, Dep’t St. Bull., No. 2096, March 1985, at 64, reprinted in 24 ILM 246 (1985).

3 For a somewhat different view of the U.S. action, see, e.g., Reisman, W., Has the International Court Exceeded its Jurisdiction?, 80 AJIL 128 (1986)CrossRefGoogle Scholar.

4 See, e.g., Lloyd, “A Springboard for the Future”: A Historical Examination of Britain’s Role in Shaping the Optional Clause of the Permanent Court of International Justice, 79 AJIL 28 (1985); Rosenne, S., The Law and Practice of the International Court 364–67 (1965)Google Scholar.

5 Lloyd, supra note 4, at 35.

6 Declarations Recognizing as Compulsory the Jurisdiction of the Court, 1983–1984 ICJ Y.B. 57–91.

7 Id.

8 The three acceptances were: Barbados on Aug. 1, 1980, 1982–1983 ICJ Y.B. 58; Togo on Oct. 25, 1979, id. at 86; Costa Rica on Feb. 20, 1973, id. at 61.

9 Since 1971, France, the United States, and the Republic of China have revoked their acceptances of the optional clause. Turkey allowed its acceptance of May 23, 1967 to lapse on May 23, 1972. 1970–1971 ICJ Y.B. 71.

10 While we recognize that no state can be brought before the Court without its consent, this consent can be granted at any time through provisions in the optional clause or in dispute settlement clauses in treaties. This has the effect of allowing states to agree to litigate over a dispute before the dispute arises. It is well known that once a dispute has arisen, even those states with prior agreements to litigate may not really want to find themselves before the Court. Legal niceties aside, it makes sense to think that they are not there voluntarily.

11 Interestingly, none of the states accepting the optional clause in recent years have been powerful states and two of the three recent acceptances have been by new states. During the same period, all withdrawals from the optional clause have been by either very powerful or reasonably powerful states. See 1983–1984 ICJ Y.B. at 57–91.

12 See, e.g., Owada, What Future for the International Court of Justice?, 65 ASIL Proc. 268 (1971); Gross, Review of the Role of the International Court of Justice, 66 AJIL 479 (1972); D’Amato, Modifying U.S. Acceptance of the Compulsory Jurisdiction of the World Court, 79 AJIL 385 (1985).

13 D’Amato, supra note 12, at 386.

14 Onuf, International Legal Order as an Idea, 73 AJIL 244 (1979); D’Amato, The United States Should Accept, by a New Declaration, the General Compulsory Jurisdiction of the World Court, 80 AJIL 331 (1986).

15 Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116 (Judgment of Dec. 18).

16 For purposes of this article, preliminary objections and merits are counted as a single case since we are dealing with the basis of the Court’s jurisdiction and that will be found in the initial submission.

17 1951 ICJ Rep. 116.

18 1 UNTS 37.

19 200 LNTS 486.

20 Case concerning rights of nationals of the United States of America in Morocco (Fr. v. U.S.), 1952 ICJ Rep. 176 (Judgment of Aug. 27).

21 See, e.g., Preuss, The International Court of Justice, the Senate, and Matters of Domestic Jurisdiction, 40 AJIL 720 (1946); Briggs, Reservations to the Acceptance of Compulsory Jurisdiction of the International Court of Justice, 93 Recueil des Cours 223 (1958 I).

22 Case concerning the Application of the Convention of 1902 governing the Guardianship of Infants (Swed. v. Neth.), 1958 ICJ Rep. 55 (Judgment of Nov. 28).

23 Case concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Hond. v. Nicar.), 1960 ICJ Rep. 192 (Judgment of Nov. 18).

24 The Washington Agreement of July 21, 1957 between Honduras and Nicaragua provided the additional basis of the Court’s jurisdiction. Id. at 194.

25 Anglo-Iranian Oil Co. case (UK v. Iran) (jurisdiction), 1952 ICJ Rep. 93 (Judgment of July 22).

26 Id.

27 It is well known that all states approach contentious cases in the belief that their side will be victorious. See, e.g., Fischer, Decisions to Use the International Court of Justice, 26 Int’l Stud. Q. 251 (1982).

28 Case of Certain Norwegian Loans (Fr. v. Nor.), 1957 ICJ Rep. 9 (Judgment of July 6).

29 See the French acceptance of Feb. 18, 1947, ratification deposited on Mar. 1, 1949, 26 UNTS 91.

30 Interhandel Case (Switz. v. U.S.), 1959 ICJ Rep. 6 (Judgment of Mar. 21).

31 Case concerning the Aerial Incident of July 27th, 1955 (Isr. v. Bulgaria), Preliminary Objections, 1959 ICJ Rep. 127 (Judgment of May 26).

32 1959 ICJ Rep. at 26.

33 Id. at 26–27.

34 1959 ICJ Rep. at 138; see also Gross, Jurisprudence of the World Court, 57 AJIL 751 (1963).

35 See Case of the monetary gold removed from Rome in 1943 (Italy v. Fr., UK, U.S.), Preliminary Question, 1954 ICJ Rep. 19 (Judgment of June 15).

36 Nottebohm case (Liechtenstein v. Guat.) (Preliminary Objection), 1953 ICJ Rep. 111 (Judgment of Nov. 18).

37 The objections were based on the expiration of Guatemala’s optional clause acceptance of Jan. 27, 1947, which was for 5 years only and was deemed to have expired on Jan. 27, 1952.

38 1953 ICJ Rep. at 111; Hudson, The Thirty-second Year of the World Court, 48 AJIL 1 (1954).

39 See supra note 37.

40 Case concerning Right of Passage over Indian Territory (Port. v. India) (Merits), 1960 ICJ Rep. 6 (Judgment of Apr. 12).

41 Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, 1962 ICJ Rep. 6 (Judgment of June 15).

42 The Franco-Siamese Treaty of Dec. 7, 1937; the Franco-Siamese Settlement Agreement of Nov. 17, 1946; and the General Act for the Pacific Settlement of International Disputes of Sept. 26, 1928, 93 LNTS 342. Id. at 6.

43 65 UNTS 157.

44 1962 ICJ Rep. at 6.

45 We use “Western” in this sense to denote those states with political leanings or allegiance to the bloc of states that was opposed to the Communist bloc during this period. Thus, the only case not litigated between states of this political persuasion was the Aerial Incident of 27 July 1955, 1959 ICJ Rep. 127.

46 In Trial of Pakistani Prisoners of War (Pak. v. India), 1973 ICJ Rep. 347 (Order of Dec. 15), Pakistan relied, in part, on Article 36(2) of the Statute as the basis for the Court’s jurisdiction. Argument of Mr. Bakhtiar, Chief Counsel for the Government of Pakistan, 1973 ICJ Pleadings (Trial of Pakistani Prisoners of War) 54–55 (June 4, 1973). The Court, however, never decided the jurisdictional question, as Pakistan asked to have the proceedings discontinued (Order of Dec. 15, supra). This case might be classified as an instance of minor defiance since India refused to appear, though it did communicate with the Court throughout the proceedings. See Elkind, J., Non-Appearance before the International Court of Justice 62–67 (1984)Google Scholar.

47 Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ Rep. 253 and 457 (Judgments of Dec. 20).

48 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Judgment of Nov. 26), reprinted in 24 ILM 59 (1985).

49 France made it clear from the start that it would not participate in the case. This was conveyed to the Court in a letter from France dated May 16, 1973. 1974 ICJ Rep. at 255. On Jan. 18, 1985, the United States, having participated in the initial stages of the case with Nicaragua (preliminary objections), issued a formal statement of withdrawal, supra note 2. For a discussion of die U.S. withdrawal, see, e.g., Franck, Icy Day at the ICJ, 79 AJIL 379 (1985); D’Amato, Nicaragua and International Law: The “Academic” and the “Real,” id. at 657; Reisman, supra note 3.

50 See especially Thirlway, H., Non-Appearance before the International Court of Justice 3–20 (1985)Google Scholar. Thirlway relies on Article 53 of the Statute of die Court to argue that nonappearance before the Court should not be construed necessarily as defiance of the Court. Article 53 permits legal proceedings to continue even when one party to the litigation exercises its privilege not to participate. Regardless of the Court’s good efforts to advance the rule of law in the international arena by hearing cases in which one party chooses not to participate, the efficacy of die Court depends upon die authoritativeness of its voice in resolving disputes in practice and not in theory. See also Highet, Litigation Implications of the U.S. Withdrawal from the Nicaragua Case, 79 AJIL 992 (1985).

51 France withdrew its acceptance of die optional clause on Jan. 2, 1974, nearly 1 year prior to the final Judgment in the Nuclear Tests Cases. 1973–1974 ICJ Y.B. 49.

52 See supra note 2.

53 N.Y. Times, June 28, 1986, at 1, col. 2 (late ed.).

54 Id.

55 See Rohn, P., Treaty Profiles (1976)Google Scholar.

56 One instance of minor defiance is also worthy of mention. In Aegean Sea Continental Shelf (Greece v. Turk.), 1978 ICJ Rep. 3 (Judgment of Dec. 19), Turkey refused to appear in the initial phase of the case; but since the Court found in Turkey’s favor on the preliminary objections, no further defiance was forthcoming.

57 Fisheries Jurisdiction (UK v. Ice.; FRG v. Ice.), 1974 ICJ Rep. 3 and 175 (Judgments of July 25).

58 Id. at 7–8.

59 Id. at 179.

60 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (Judgment of May 24).

61 The Optional Protocols to the Vienna Conventions of 1961 and 1963 on Diplomatic and Consular Relations, 500 UNTS 241 and 596 UNTS 487; and the Treaty of Amity, Economic Relations, and Consular Rights, Aug. 15, 1955, U.S.-Iran, 8 UST 899, TIAS No. 3853, 284 UNTS 93. 1980 ICJ Rep. at 3.

62 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 18 (Judgment of Feb. 24), reprinted in 21 ILM 225 (1982), was based on a special agreement between the parties to submit the dispute to the Court, concluded on July 10, 1977. Likewise, Continental Shelf (Libyan Arab Jamahiriya/Malta), 1983 ICJ Rep. 3 (Order of Apr. 26), was based on a special agreement to submit the dispute to the ICJ. It entered into force on Mar. 20, 1982. See 21 ILM 971 (1982).

63 Perhaps one apparent exception should be mentioned. In the Corfu Channel case, Albania never paid the damages to the United Kingdom that were awarded by the Court. Corfu Channel case (UK v. Alb.) [Assessment of Amount of Compensation], 1949 ICJ Rep. 244 (Judgment of Dec. 15). But see, e.g., Highet, supra note 50, at 993-94; H. Thirlway, supra note 50,.at 6–7; G. Guyomar, Le Défaut des parties à un différend devant les juridictions internationals 30, 201–03 (1960), cited in Highet, supra, at 994.

64 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246 (Judgment of Oct. 12), reprinted in 23 ILM 1197 (1984). For a discussion of this case, see, e.g., Schneider, The Gulf of Maine Case: The Nature of an Equitable Result, 79 AJIL 539 (1985).

65 See de Aréchaga, Jiménez, The Amendments to the Rules of Procedure of the International Court of Justice, 67 AJIL 1 (1973)Google Scholar.

66 Schneider, supra note 64, at 539–41.

67 For details, see Robinson, Colson & Rashkow, Some Perspectives on Adjudicating before the World Court: The Gulf of Maine Case, 79 AJIL 578 (1985); see also Schneider, supra note 64, at 543.

68 See, e.g., Jiménez de Aréchaga, supra note 65, at 3.

69 This decline has been the object of much scholarly concern. See, e.g., Partan, Introduction: Increasing the Effectiveness of the International Court, 18 Harv. Int’l L.J. 559 (1977); Gamble, J. & Fischer, D., The International Court of Justice: An Analysis of a Failure (1976)Google Scholar; Deutsch, Recent Movements Toward Strengthening the International Court of Justice, 67 AJIL 741 (1973); Gross, The International Court of Justice: Consideration of Requirements for Enhancing its Role in the International Legal Order, 65 AJIL 253 (1971); Sohn, Step-by-Step Acceptance of the Jurisdiction of the International Court of Justice, 58 ASIL Proc. 131 (1964).

70 See supra note 12.

71 Small states have long insisted that international law is the province of the powerful and that both customary international law and treaties in the past have been made only to benefit those states controlling the system. See, e.g., Bedjaoui, M., Towards a New International Order (1979)Google Scholar; Scott, G., Chinese Treaties 98–99 (1975)Google Scholar; Mcwhinney, E., International Law and World Revolution 83–101 (1967)Google Scholar. There is no need to exacerbate this feeling by insisting on legal machinery that makes the advantages of the powerful even more obvious.

72 Rawls, J., A Theory of Justice 235–43 (1971)Google Scholar.

73 See, e.g., Berman, H., Law and Revolution 11–46 (1983)Google Scholar.

74 Kelsen, H., General Theory of Law and State 110–13 (1961)Google Scholar; Hart, H., The Concept of Law 107–15 (1961)Google Scholar; Hart, Legal and Moral Obligation, in Essays in Moral philosophy 82 (A. Meldin ed. 1958); Raz, J., The Authority of Law 250–61 (1979)Google Scholar.

75 H. Berman, supra note 73, at 316–22; Falk, The Relevance of Political Context to the Nature and Functioning of International Law: An Intermediate View, in The Relevance of International Law 177, 195 (K. Deutsch & S. Hoffmann eds., 1971).

76 This point will sound odd to anyone who thinks law is something separate from—and ostensibly purer than—politics. See, e.g., H. Thirlway, supra note 50, at 66; Gross, supra note 69, at 261. While legal purists will continue to insist that law is, in some sense, above politics, and while they will continue to insist upon the need to transcend the latter to attain the rule of law, these visionary schemes should not blind us to the historical and practical linkages between law and politics. Failure to appreciate these linkages will leave us with an international jurisprudence that is both artificial and empty. See J. Shklar, Legalism 220–24 (1964).

77 Berman states, “The separation, concurrence, and interaction of the spiritual and secular jurisdictions was a principal source of the western legal tradition.” H. Berman, supra note 73, at 99.

78 Id. at 88–94, 255–64.

79 Fuller, Human Interaction and the Law, in The Rule of Law 171 (R. Wolff ed. 1971).

80 Perhaps the closest thing that we find in international law to the notion of competing legal systems is the principle of the exhaustion of local remedies. Here it is usually clear that the problem has been conceptualized as a legal one by the states; they are quarreling over which legal system, national or international, should have jurisdiction over the legal dispute.

81 Rovine, The National Interest and the World Court, in The Future of the International Court of Justice 313 (L. Grossed. 1976).

82 1961–1962 ICJ Y.B. 215.

83 Id. at 208.

84 Aerial Incident of 27 July 1955, 1959 ICJ Rep. 127.

85 D’Amato, supra note 14, at 332.

86 Rovine, supra note 81, at 315–24.

87 Fischer, supra note 27, at 265.

88 Coplin, The World Court in the International Bargaining Process, in The United Nations System and its Functions 313 (R. Gregg & M. Barkun eds., 1968).

89 Onuf, supra note 14, at 265.